Sarah Palin trademark thing

I try not to blog about the trademark stories that are all over the place. There are a couple of reasons for this. One is that I am a snob. I always knew that if “everyone was going” to see some movie, I was not interested in going unless some other reason could balance out the inherent flaw of popularity. This is not a particularly meritorious quality of mine, but this is just between us.

Even less meritorious, when you have one of these popular trademark stories — like the Palin trademark situation — I figure if everyone isall over a story, well, it’s covered, right? Let me find the story everyone else isn’t writing about. Plus, why risk blowing it? Lots of people know this stuff better than I do. (UPDATE: Here too — excellent comprehensive treatment.)

And then I take a look at what everybody’s saying because people are poking me about it and I realize maybe they’re missing something, perhaps. That happened with the Politico trademark thing.

So here everyone’s talking about Sarah Palin trying to “trademark her name.” Of course regular readers already know that “trademark” is not a verb and that what Sarah Palin is trying to do is register her name as a trademark. That’s not even low-hanging fruit any more around here.

My main take on this, looking at the application and the reporting, is that the law firm that filed the application should be very embarrassed, and certainly is. As everyone knows by now, the application — here’s a PDF of the Office Action — was not properly authorized (“signed”) by the applicant, Governor Palin.

That is a tip-off that a lawyer who doesn’t really do trademark work was doing “trademark” “work.”

And indeed, running down the bio of the attorney of record, I see an accomplished generalist / litigator who is not a trademark lawyer — but who still exercised poor enough judgment not only to handle this himself with little more insight into the process than a well-focused layman, but with the full knowledge that he would subject himself to this level of scrutiny if anything went wrong. Or even if it went right. That same office has not continued to cover itself with glory as of this “Notation to File” only yesterday.

Trademark law does not get respect from the judges who “wing it” regarding other people’s businesses, from journalists and even law bloggers who by their misuse of the word “trademark” demonstrate a fundamental misunderstanding of American trademark law (by which trademarks are earned by use, not a process called “trademarking”), from outfits such as Legal Zoom that have non-lawyers file trademark applications for fees or from the lawyers who think of it as such a meatball area of practice that “anyone can do it.”

13 comments

I suppose it’s simply a matter of semantics, but the application was signed by an attorney licensed to practice in the U.S., and who is Ms. Palin’s attorney. And if the mark were ZYXUS, his signature on the application would be unremarkable, and the application would be considered “properly” signed.

However, as you noted, a trademark application is full of traps for the unwary, and Ms. Palin’s attorney appears to have stumbled on a few in what should be a relatively simple application. He seems unaware of the law requiring a living individual’s consent to register his/her name as a trademark or that the simplest way to provide that consent is to have that person sign the application.

He also does not seem to have given much thought as to the importance of first use dates. Was Ms. Palin an early adopter of the Worldwide Web and developed a website to provide political information in 1996? Is politicking on one’s own candidacy for mayor in 1996 the same as providing “information on political elections”? She joined the Washington Speakers Bureau in 2009, but has she provided motivational speaking since 1996? Finally, why the focus on 1996? Why not 1992 when she ran in her first election for the Wasilla city council? Or 2009 after she gained national exposure and when she became a private actor?

He also seems somewhat unclear on the concept of a specimen as this office action shows. Serial No. 85130638 BRISTOL PALIN is even worse. He claims use of the mark but submitted a drawing of her name as the specimen.

Ultimately, I think too much is being made of the signature issue. It was easy to avoid, but is also easy to fix. But you’re right that Ms. Palin’s attorney, through his ignorance of trademark law, has needlessly complicated her application and her daughter’s application.

What annoyed me most about the hundreds (thousands?) of uninformed tweets about this trademark application was the intimation that Sarah Palin “forgot” to sign the application. [I’m no fan of Palin, but there are lots of other. legitimate reasons to criticize her]. Many trademark applications are filed without the signature of the applicant. It’s standard practice.

The only information one needs to file an application are: a mark, a listing of goods or services, and the name of the applicant. If the application is based on use, then a specimen of use and dates of use are required. It seems clear that the attorney who filed was not experienced in trademark law. [To say he’s not a “trademark attorney” is odd, since any attorney may appear and represent clients before the USPTO in a trademark matter]. The signature of the applicant is not required at filing.

As to first use dates stated in an application, they have no legal effect anyway, but it’s not a bad idea to claim as early a date as reasonable.

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The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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